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UNIVERSITAS GADJAH MADA

INTERNATIONAL UNDERGRADUATE PROGRAM


FACULTY OF LAW
PRIVATE INTERNATIONAL LAW
LECTURER: ANNISA SYAUFIKA, S.H, MH

RIBKA GIRSANG
12/326674/HK/18984
CASE SUMMARY OF HARDING VS. WEALANDS

YOGYAKARTA
2014
CASE SUMMARY

Harding (Appellant) v. Wealands (Respondent)


[2006] UKHL 32
I. BACKGROUND
The claimant in this case is Mr Giles Harding, a United Kingdom national who at all times
had lived in England. He suffered serious and permanent injury in a motor accident in February
2002 in New South Wales caused by the admitted negligence of the defendant, Ms Tania Wealands,
the owner/driver of the vehicle in which the claimant was a passenger.
The defendant was an Australian national who at all times had lived in New South Wales
until she met the claimant in Australia in March 2001.They had formed a relationship when Mr
Harding visited Australia in March 2001 and in consequence Ms Wealand had come to England in
June 2001 to live with Mr Harding. At the time of the accident they had gone together to Australia
for a holiday and a visit to Ms Wealand's parents. The vehicle belonged to Ms Wealand. The
accident happened on 3 February 2002 on a dirt track near Huskisson in New South Wales when
they were on their way to attend her fathers sixtieth birthday. The respondent, Ms Wealand lost
control of the vehicle she was driving and it turned over. Negligence is admitted. At the time of the
accident, the claimant was in Australia on a three week holiday with the defendant.
The defendants vehicle was covered by a compulsory third party insurance policy issued by
National Roads and Motorists' Association (NRMA), an Australian insurance company, and the
defendant was driving on a New South Wales drivers licence.
About a month after the accident, the defendant accompanied the claimant when he was
repatriated to the United Kingdom for continuing medical treatment and rehabilitation. Their
relationship fell apart after they had been back in England for a month. The defendant remained
in England for a further six months during which she was served personally with the originating
process in proceedings commenced by the claimant in the Queens Bench Division. An application
by the defendant for a stay of proceedings on the ground that New South Wales was the more
appropriate forum was dismissed and there was no appeal from that decision.
The question in the case was whether the recovery of damages by the claimant was subject
to the restrictions contained in the Motor Accidents Compensation Act 1999 (NSW) (the NSW
Act). If these restrictions applied, the recovery of damages by the claimant would be substantially
less (30% less according to the claimant) than under English law. The relevant restrictions on
damages in the NSW Act included: (1) a cap of $A309,000 on the award of damages for noneconomic loss (i.e. pain and suffering), and (2) a discount rate of 5% (double the English rate) in
respect of future economic loss.

II. DECISION
ENGLISH COURT OF APPEAL
In answering this question, the English Court of Appeal considered two issues : (1) what was
the applicable substantive law in respect of the claim, and (2) whether the restrictions on damages
in the NSW Act were substantive or procedural. In respect of these issues, the trial judge (Elias J)
had found that English law was the applicable substantive law and that the restrictions in the NSW
Act were procedural.
The English Court of Appeal allowed the defendants appeal from the judgment of the trial
judge. The court held:
1.

In accordance with the general rule contained in s 11(1) of the Private International Law
(Miscellaneous Provisions) Act 1995 (UK), the applicable substantive law was the law of
New South Wales being the law of the country in which the events constituting the tort
occur[red]. Taking into account all the circumstances it was not substantially more
appropriate for the applicable substantive law to be the law of another country (s 12). (Per
Waller LJ, Arden LJ and Sir William Aldous agreeing.)

2. The restrictions on damages in the NSW Act were substantive and, for that reason,
applicable in the present case. (Per Arden LJ and Sir William Aldous, Waller LJ
disagreeing.)
With regard to the applicable substantive law, Waller LJ made the following observations ([2004]
EWCA Civ 1735 at [20]):
I simply cannot accept [contrary to the trial judge] a conclusion that the defendants link at
the material time with England and with Mr Harding was far more significant than her
Australian connection, or that the strongest factor favouring New South Wales was the fact
that Ms Wealands was insured there. I would fully understand, having regard to the settled
relationship, that Mr Harding and Ms Wealands were in, that if they had been on holiday in
France when this accident occurred England might have been found to be substantially more
appropriate and to have displaced French law. But where the general law, by virtue of s 11
being the law where the tort occurred, is also the national law of one of the parties, it will, I
suggest, be very difficult to envisage circumstances that will render it substantially more
appropriate that any issue could be tried by reference to some other law. In this case all that
the judge relied on was the parties settled relationship, but however settled that
relationship, Ms Wealands had left her car in New South Wales, was still a citizen of

Australia driving on a New South Wales driving licence, and the accident occurred in New
South Wales.
HOUSE OF LORDS
The House of Lords allowed the claimants appeal from the judgment of the English Court
of Appeal and restored the judgment of the trial judge in favour of the claimant. In reaching this
conclusion, the House of Lords found it unnecessary to decide whether, in accordance with the
Private International Law (Miscellaneous Provisions) Act 1995 (UK), New South Wales law or
English law was the applicable substantive law. The House of Lords held that, in any event, the
restrictions on damages in the NSW Act, being provisions concerned with the assessment or
quantification of damages, were procedural and, for that reason, inapplicable in the present case.
The principal judgments in the House of Lords were given by Lord Hoffmann and Lord
Rodger of Earlsferry who agreed with each other and with whom the other members of the House
of Lords (Lord Bingham of Cornhill, Lord Woolf and Lord Carswell) agreed. Lord Hoffmann and
Lord Rodger of Earlsferry reaffirmed as English private international law the traditional distinction
between substance and procedure in the context of damages: the assessment or quantification of
damages is a matter of procedure governed by the lex fori; the availability of particular heads or
kinds of damage, such as non-economic loss and pain and suffering, is a matter of substance
governed by the lex causae. As a matter of statutory interpretation, this traditional distinction had
been preserved in the Private International Law (Miscellaneous Provisions) Act 1995 (UK).
The House of Lords declined to follow the decision of the High Court of Australia in John
Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 where, in the context of a claim in the Australian
Capital Territory to recover damages for a tort committed in New South Wales, the High Court of
Australia abandoned the traditional distinction and held that all questions about the kinds of
damage, or amount of damages recoverable, are substantive issues. Lord Hoffmann referred with
approval to the earlier decision of the High Court of Australia in Stevens v Head (1993) 176 CLR
433 where the court had applied the traditional distinction in the context of an intranational tort
claim.

Lord Hoffmann

and Lord Rodger of Earlsferry also expressed the view that the

abandonment of the traditional distinction in John Pfeiffer Pty Ltd v Rogerson was said (by the High
Court of Australia) to be required by considerations of Australian federalism. Both Lord Hoffmann
and Lord Rodger of Earlsferry observed that the High Court of Australia in Regie Nationale des
Usines Renault SA v Zhang (2002) 187 ALR 1 had left open the question whether the traditional
distinction continues to apply in Australian private international law in the context of international
tort claims. In the words of Lord Rodger of Earlsferry referring to Zhang:
It remains to be seen whether the High Court will hold that all questions about the kind or

amount of damages are to be determined by the lex loci delicti in international cases.

III. RESPONSE AND OPINIONS TO THE CASE


The response of the New South Wales parliament to the decision of the House of Lords in
Harding v. Wealands (above) was to amend s 123 of the NSW Act. Section 123(2) of the NSW Act
now provides that, if the substantive law of New South Wales governs a motor accident damages
claim, the provisions of the NSW Act relating to the recovery of damages are part of that
substantive law and are to be applied accordingly, including by a foreign court. With regard to s
123(2), it may be observed that, as a general principle of private international law, the
characterisation of foreign law as substantive or procedural is governed by the lex fori.
The other aspect of the New South Wales parliaments response to Harding v. Wealands is s
123(3) which provides, in s 123(3)(a), that if a court, including a foreign court, awards damages
contrary to the NSW Act, the defendant is not required to pay those damages to the extent that the
award is contrary to the NSW Act. Section 123(3)(b) further provides that, if the defendant has paid
an amount of damages in excess of that which should have been awarded in conformity with the
NSW Act, the defendant may recover the excess as a debt from the plaintiff. With regard to s
123(3)(b), it may be observed that the effectiveness of this provision is likely to be very limited.
Suppose a case like Harding v. Wealands, involving an English visitor injured in a motor accident in
New South Wales, should present itself again and the English courts award the plaintiff damages in
excess of that which should have been awarded in conformity with the NSW Act. A New South
Wales judgment in favour of the defendant in the English proceedings for the amount of the excess
of damages awarded in the English proceedings would be unenforceable in England as contrary to
public policy.

IV. CONCLUSION
The parties in this case come from different nationalities. The lex patriae are United
Kingdom and Australia. The lex loci delicti is in Australia. The habitual residence of both parties
are also in New South Wales,Australia. In this case the English Court has the jurisdiction and the
English law is applicable.
The general rule is that the law of the country in which the accident happened (lex loci
delicti) will govern substantive matters ie. liability and the extent to which certain heads of damage
are recoverable. Assessment remains a matter for the lex fori.

The general rules can be displaced if it can be shown that it would be substantially more
appropriate to apply the law of another country, like Australia.
On appeal to the House of Lords, the High Courts decision was restored allowing the
assessment of Mr Hardings damages in accordance with English law. The HL does not appear to
have considered in what circumstances it would be substantially more appropriate to displace the
general rule.
The House of Lords reaffirmed that liability falls under the heading of substantive law but
rules on assessment of damages are to be regarded as procedural.
This was a case in which the applicable substantive law was the law of New South Wales
(Australia) where the accident occurred. The House of Lords had to decide what law to apply to
assessment of damages. The issue was highly significant to the injured party. The New South Wales
Motor Accidents Compensation Act 1999 placed a cap on damages for non-economic loss (ie pain
and suffering), loss of earnings and gratuitous care.
These rules are significantly less generous to claimants than the equivalent rules of English
law, perhaps to the tune of 35% or so in terms of the overall valuation of quantum in this case. The
House of Lords reaffirmed that these rules are procedural. Hence, because the damages is a
matter of procedure, it is governed by the lex fori. Thus, at the proceedings in England to recover
damages for a tort committed in New South Wales, the assessment or quantification of damages is
governed by English law.